The N.C. Supreme Court opened the door in 2018 to a potential seismic shift in state government power. Now the same court has closed that door — at least partially.
One justice is responsible for writing majority opinions that point toward two different paths in an ongoing fight. The battle pits the governor against the legislature. It involves the separation of powers.
The same justice, Sam Ervin IV, is likely to play a key role as that fight plays out over the next two years.
Before delving into Ervin’s potential impact, it’s important to note that conflicts among the various branches of government are as old as the concept of separation of powers itself. Fans of the Federalist Papers might recall James Madison devoting portions of Federalist No. 47 to Montesquieu’s musings on the subject. By the time of Madison’s citation in 1788, the Frenchman’s writing was already four decades old.
So there’s plenty of history of intergovernmental power struggles. North Carolina has seen its share of fights between the executive and legislative branches. Both sides have disputed the proper role each should play in determining state government policy.
The current governor, Democrat Roy Cooper, and Republican lawmakers such as Sen. Phil Berger, R-Rockingham, have added their own chapters to the story in recent years. Multiple lawsuits dubbed Cooper v. Berger have thrust the conflict into the state’s courts.
Here’s where Ervin enters the story.
In January 2018, he wrote the majority opinion in a split 4-3 ruling in one Cooper v. Berger dispute. This one focused on whether the General Assembly could write a new law reconstituting the state elections board.
Lawmakers hoped to replace a system that had guaranteed the governor’s political party three seats on a five-member board. Under the new law, an expanded board would feature four members each from the two major parties.
Cooper objected. When the case reached the state’s highest court, Ervin and three other Democratic justices sided with the Democratic governor. The three Republican justices all dissented.
“An agency structured in that manner ‘leaves the Governor with little control over the views and priorities of the [majority of] officers’ and prevents the Governor from having ‘the final say on how to execute the laws,’” Ervin wrote of the new elections board. “As a result, the manner in which the membership of the Bipartisan State Board is structured and operates … impermissibly, facially, and beyond a reasonable doubt interferes with the Governor’s ability to ensure that the laws are faithfully executed as required” by the state constitution.
Ervin’s opinion prompted a strong rebuke from dissenting Republican Justice Paul Newby. “The Court strips the General Assembly of its historic, constitutionally prescribed authority to make the laws and creates a novel and sweeping constitutional power in the office of Governor — the authority to implement personal policy preferences.”
Such a “novel” and “sweeping” new power could have opened the door to many more legal victories for the governor over the General Assembly over the next three years. That hasn’t happened.
Near the end of 2018, a unanimous state Supreme Court ruled against Cooper in another fight with legislators. The court affirmed the General Assembly’s confirmation power over appointments to the governor’s Cabinet. Nor did Cooper win his battle to keep political party labels out of judicial elections.
Just last month, the governor faced his latest legal defeat at the state’s highest court. Justices ruled, 6-1, that Cooper could not dictate the way state government would spend federal block grant funds.
The author of the majority opinion in that case? Ervin.
Nearly three years after being accused of creating a new constitutional power for the governor “to implement personal policy preferences,” Ervin spelled out why he and five colleagues — including Newby — rejected Cooper’s argument that the governor alone could determine how to spend millions of dollars in federal aid.
“The appropriations clause of the North Carolina State Constitution provides that ‘[n]o money shall be drawn from the State treasury but in consequence of appropriations made by law,’” Ervin wrote. “In light of this constitutional provision, ‘[t]he power of the purse is the exclusive prerogative of the General Assembly,’ with the origin of the appropriations clause dating back to the time that the original state constitution was ratified in 1776.”
“In drafting the appropriations clause, the framers sought to ensure that the people, through their elected representatives in the General Assembly, had full and exclusive control over the allocation of the state’s expenditures.”
Unlike the 2018 Cooper v. Berger ruling, the December 2020 case did not split Supreme Court justices along party lines. Ervin and four other Democratic justices joined Newby in ruling in favor of the legislature. Only Democratic Justice Anita Earls sided with the governor.
With Newby installed now as chief justice, and two new Republicans on the state’s highest court, Democrats still outnumber Republicans, 4-3. It will be interesting to see whether party labels play a significant role in future fights over powers and duties of the executive and legislative branches.
However those battles turn out, we should expect to see a major contribution from the author of two major Cooper v. Berger rulings: Justice Sam Ervin IV.
Mitch Kokai is senior political analyst for the John Locke Foundation.